Potpourri of Family Law Topics

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Shifts in the Law Regarding the Rights of Third Parties to Seek Visitation and Custody of ChildrenJeff Atkinson

This article analyzes the law of third-party visitation and custody in the United States. It describes how state statutes and case law have changed in the thirteen years since the United State Supreme Court decided Troxel v. Granville, with the shift in the law generally giving more deference to the decisions of parents. Regarding custody, Professor Atkinson tracks the circumstances in which third parties, including stepparents, have gained custody. He also notes the trend in the law to give more rights to persons who have acted as de facto parents. The article concludes with recommendations for further developments in the law and contains an appendix with a model act developed by the ABA Section of Family Law (but not approved by the ABA).

The author describes recent research that documents the wide range of adverse effects--some of them life-long--that remain with about half of all children who are exposed to violence in their families. Because of the recurrent behavior patterns of abusive parents, largely men who batter their partners and a lesser percentage of women who are mentally ill, family courts are urged to elevate consideration of domestic violence to the highest priority in child custody actions, above other best-interest factors. To best accomplish this, the safety-first paradigm proposed at the inter-disciplinary Wingspread 2007 conference of child custody experts should be adopted by all family courts in placing children of separated parents.

In determining what outcome is likely to be in the best interests of children, it is necessary to try to predict how each of the parents and the children will respond to, and cope with, the decision that is made. That is particularly difficult in relocation cases. This article reports on the experiences of fifteen mothers over a four to five-year period following the conclusion of a relocation dispute, and for whom the initial outcome was that they did not move away as they had sought to do. Eight out of fifteen of the mothers indicated that in hindsight it had been better for their children to stay in close proximity to their father. All of these mothers said the children were "fairly close" or "very close" to their father at the final interview or before. The mothers varied in how well they had coped with the decision, some accepting it, others having adjusted as best they could without accepting it, and a few adjusting poorly. Four factors seemed to have made the most difference in terms of being able to adjust, or not, to the adverse outcome: the degree of control they were able to exercise over their own futures; their recognition that the children benefited from a close relationship with their father; the father’s degree of involvement with, and responsibility for, the children, and the level of toxicity in the father-mother relationship. The article concludes by considering possible implications for better decision-making in relocation cases.

Sullivan believes that military servicemembers are currently at a distinct disadvantage in seeking custody of their children in a divorce case. He believes that the Uniform Deployed Parents Custody and Visitation Act, which was drafted by the National Conference of Commissioners on Uniform State Laws, is a new tool that will help put military servicememebers on an equal footing in seeking custody of and visitation with their children. He details the problems servicemembers face, the reluctance of courts to award custody to parents who are or may be deployed, and the protections available under the act. He encourages state legislatures to pass the act.

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